Den europæiske Menneskerettighedsdomstol har i sagen
CAMPBELL mod. THE UNITED KINGDOM, (application no.
13590/88), der blev afgjort den 25. marts 1992, fundet,
at der forelå en krænkelse af artikel 8 i EMRK, idet et
britisk fængsel havde åbnet breve fra advokaten for at
se, om der via brevene blev indsmuglet genstande i
fængslet. Domstolen fastslår, at indsattes brevveksling
med advokater er privilegeret, og at fængslet kun må
åbne disse ved en konkret og begrundet mistanke om, at
brevene indeholder genstande, der kan true fængslets
sikkerhed, eller at der bliver begået strafbart forhold.
Relevante passager er oversat i det følgende. Hele
afgørelsen følger derefter på engelsk.
------------------------
Fængsels åbning af brev fra indsat til advokat krænkede
EMRK artikel 8. Indsattes korrespondance med advokater
er "priviligeret"
De britiske myndigheder havde rutinemæssigt åbnet
korrespondancen mellem en indsat og dennes advokat, uden
at der forelå en konkret mistanke om, at brevvekslingen
blev udnyttet i kriminel øjemed. De britiske myndigheder
argumenterede i den efterfølgende sag ved Den europæiske
menneskerettighedesdomstol (EMD) med, at det er
nødvendigt at kontrollere indsattes breve, for at se, om
disse indeholder noget, der er forbudt (§ 43).
I § 46 anføres blandt andet følgende: Det er uden tvivl
af almindelig interesse, at en person, som ønsker at
konsultere en advokat, skal have adgang til at gøre
dette under forhold, som fremmer en ubegrænset
kommunikation. Af denne grund er advokat-klient
forholdet i princippet at anse for "priviligeret". I
afgørelsen S. v. Switzerland af 28. november 1991
understregede EMD betydningen af en indsats ret til at
føre samtale med sin advokat, uden at denne kunne
overhøres af fængselsmyndighederne. Der var under denne
sag overvejelser med hensyn til EMRK artikel 6 om, at
hvis en advokat er ude af stand til at føre samtale med
dennes klient uden sådan overvågning samt modtage
instruktioner fra klieten, så ville advokatens bistand
kunne tabe sin betydning for klienten. Konventionens
formål er at sikre borgerne rettigheder, som har
praktisk betydning, og som er effektive.
I § 47 anføres det, at lignende overvejelser gør sig
gældende med hensyn til en indsats korrespondance med
sin advokat såvel med hensyn til påtænkte som med hensyn
til verserende sager, hvor behovet for fortrolighed er
tilsvarende stort. Dette gør sig i særlig grad gældende
i det foreliggende tilfælde, som vedrører krav mod og
klager over fængselsmyndighederne. At sådan
korrespondance er genstand for rutinemæssig kontrol
navnlig af personer, som har en direkte interesse i
selve indholdet af korrespondancen, er ikke foreneligt
med principperne om fortrolighed og professionelle
privilegier, som knytter sig til forholdet mellem en
advokat og dennes klient.
I § 48 noterer Domstolen sig det af
fængselsmyndighederne anførte om, at det kan være
vanskeligt at trække grænsen mellem breve, som vedrører
overvejelser om at føre sag, og breve, som vedrører
forhold, som har lidt eller ingen ting at gøre med at
føre sag. EMD understreger, at EMD ikke ser nogen grund
til at lave en opdeling af korrespondancen mellem
advokater og indsatte i forskellige kategorier. Uanset
formålet, og uanset om korrespondancen vedrører emner af
privat eller af fortrolig karakter, gælder princippet
om, at sådan korrespondance er priviligeret under
artikel 8.
Dette betyder (§ 48 fortsat), at myndighederne kun må
åbne et brev fra en advokat til en indsat, når der er
rimelig grund til at antage, at brevet indeholder
ulovlige genstande, som ikke kan spores med sædvanlige
kontrolforanstaltninger. Brevene skal under sådanne
omstændigheder kun åbnes og ikke læses. Tilstrækkelige
foranstaltninger skal træffes for at sikre, at brevene
ikke bliver læst for eksempel ved, at åbningen sker,
medens den indsatte er til stede. Læsning af breve
mellem advokat og indsat skal kun finde sted, når
myndighederne har rimelig grund til at antage, at
privilegiet bliver misbrugt på en sådan måde, at brevet
er en trussel mod fængselssikkerheden eller andre
personers sikkerhed eller i øvrigt er af en kriminel
karakter. Hvad der nærmere ligger i "rimelig grund"
afhænger af de konkrete forhold men det er forudsat, at
der skal være fakta eller information til stede, som på
en overbevisende måde viser, at en priviligeret
kommunikationsmåde bliver misbrugt.
I § 50 er EMD opmærksom på myndighedernes betragtning
om, at en advokat blot kan besøge den indsatte frem for
at skrive sammen med denne. Hertil påpeger EMD, at en
sådan mulighed ikke fører til, at automatisk kontrol af
breve i højere grad kan accepteres, idet for eksempel
afstanden mellem advokatens kontor og fængslet kan
vanskeliggøre advokatens besøgsmuligheder.
I § 52 forholder EMD sig til det af de britiske
myndigheder anføte om, at nogle advokater tidligere har
misbrugt deres adgang til at korrespondere med indsatte,
og om at der ville kunne opstå svigt i sikkerhed, hvis
det blandt indsatte bliver almindeligt kendt, at man kan
være sikker på at breve til og fra advokater aldrig
kontrolleres. Domstolen henviser i denne forbindelse
til, at advokater via advokatmyndigheden er undergivet
disciplinære skridt, hvis deres adfærd nødvendiggør
dette. Derudover understreges det, at der ikke fra
myndighederne er anført konkrete grunde til at antage,
at klagerens advokat ikke fulgte de advokatetiske
regler. Domstolen afslutter § 52 med at fastslå, at den
blotte mulighed for misbrug må vige for det hensyn til
fortrolighed, som knytter sig til forholdet mellem en
advokat og dennes klient.
I § 54 konstateres det, at EMRK artikel 8 er krænket i
den foreliggende sag.
Artikel:
COURT (CHAMBER)
CASE OF CAMPBELL v. THE UNITED KINGDOM
(Application no. 13590/88)
JUDGMENT
STRASBOURG
25 March 1992
In the case of Campbell v. the United Kingdom*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention
for the Protection of Human Rights and Fundamental
Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed
of the following judges:
Mr J. Cremona, President,
Mr J. Pinheiro Farinha,
Mr R. Macdonald,
Mr A. Spielmann,
Mr S.K. Martens,
Mr I. Foighel,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Sir John Freeland,
and also of Mr M.-A. Eissen, Registrar, and Mr H.
Petzold, Deputy Registrar,
Having deliberated in private on 28 September 1991 and
28 February 1992,
Delivers the following judgment, which was adopted on
the last-mentioned date:
PROCEDURE
1. The case was referred to the Court on 12 October 1990
by the European Commission of Human Rights ("the
Commission") and by the Government of the United Kingdom
of Great Britain and Northern Ireland ("the Government")
on 22 November 1990, within the three-month period laid
down by Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention. It originated in an
application (no. 13590/88) against the United Kingdom
lodged with the Commission under Article 25 (art. 25) on
14 January 1986 by Thomas Campbell, a British citizen.
The Commission’s request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the
United Kingdom recognised the compulsory jurisdiction of
the Court (Article 46) (art. 46), and the Government’s
application to Article 48 (art. 48). The object of the
request and the application was to obtain a decision
from the Court as to whether the facts of the case
disclosed a breach by the respondent State of its
obligations under Article 8 (art. 8) and also, in the
case of the request, Article 25 (art. 25) of the
Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant
stated that he wished to take part in the proceedings
pending and designated the lawyer who would represent
him (Rule 30).
3. The Chamber to be constituted included ex officio Sir
Vincent Evans, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R.
Ryssdal, the President of the Court (Rule 21 para. 3
(b)). On 30 October 1990, in the presence of the
Registrar, the President drew by lot the names of the
other seven members, namely Mr J. Pinheiro Farinha, Mr
R. Macdonald, Mr A. Spielmann, Mr S.K. Martens, Mr I.
Foighel, Mr R. Pekkanen and Mr J.M. Morenilla (Article
43 in fine of the Convention and Rule 21 para. 4) (art.
43). Subsequently Sir John Freeland, the newly elected
judge of British nationality, who had taken up his
duties before the hearing, replaced Sir Vincent Evans
who had resigned (Rule 2 para. 3).
4. Mr Ryssdal assumed the office of President of the
Chamber (Rule 21 para. 5) and, through the Registrar,
consulted the Agent of the Government, the Delegate of
the Commission and the applicant’s representative on the
need for a written procedure (Rule 37 para. 1).
In accordance with the President’s orders and directions,
the Registrar received, on 1 March 1991, the applicant’s
memorial, on 4 March 1991, the Government’s, and, on 24
July and 16 August 1991, the applicant’s claim under
Article 50 (art. 50). By letter of 22 April 1991 the
Secretary to the Commission informed him that the
Delegate would submit his observations at the hearing.
5. Having consulted, through the Registrar, those who
would be appearing before the Court, the President
directed on 3 December 1990 that the hearing should open
on 23 September 1991 (Rule 38).
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court
had held a preparatory meeting beforehand. Mr Cremona,
Vice-President of the Court, replaced Mr Ryssdal who was
unable to take part in the further consideration of the
case (Rule 21 para. 5, second sub-paragraph).
There appeared before the Court:
- for the Government
Mrs A. Glover, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr A.F. Rodger, Q.C., Solicitor General for Scotland,
Mr R.J. Reed, Advocate,
Mr J.L. Jamieson,
Mr C. Reeves, Advisers;
- for the Commission
Mr. Rozakis, Delegate;
- for the applicant
Mr J. Carroll, Solicitor.
7. The Court heard addresses by Mr Rodger for the
Government, by Mr Rozakis for the Commission and by Mr
Carroll for the applicant, as well as replies to
questions put by the Court. The applicant and the
Government filed further submissions concerning Article
50 (art. 50) on 2 and 29 October 1991.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
8. On 10 October 1984 the applicant was convicted of
assault and murder at the High Court, Glasgow, and was
sentenced to life imprisonment. One of the offences
involved setting fire to the front door of a flat
thereby killing six of the nine members of one family
asleep there at the time. A recommendation was made by
the trial judge that he should serve not less that
twenty years’ imprisonment in view, inter alia, of the
appalling nature of the crimes and his previous criminal
record which indicated that he was "a ruthless man of
violence".
Mr Campbell was initially classified as a Category B
prisoner, the minimum classification for any prisoner
either sentenced to three or more years’ imprisonment or
convicted of a crime involving serious violence.
Following an incident at Peterhead Prison he was charged
with a number of offences and was re-classified as a
Category A prisoner, the classification pertaining to
the group of inmates requiring the highest degree of
security. These charges were later abandoned by the
Crown but he remained a Category A prisoner from 4
November 1985 until 9 March 1988. Since then he has been
a Category B prisoner again.
He has been detained in, inter alia, Perth and Peterhead
Prisons which are situated at a considerable distance
from the offices of his solicitor in Glasgow. He is now
serving his sentence in the Special Unit in Barlinnie
Prison, Glasgow.
9. Since his imprisonment the applicant had been advised
by his solicitor in respect of:
1. an action for damages against the Secretary of State
for Scotland for injuries sustained following an assault
by a prison officer in Peterhead Prison on 3 November
1985;
2. an action for damages against the Secretary of State
for Scotland in respect of an infestation of lice while
in the hospital wing of Peterhead Prison in November
1985;
3. a potential claim against the Secretary of State for
Scotland for damages in respect of an alleged assault by
a prison officer during an incident in Barlinnie Prison
on 25 April 1987;
4. a possible prosecution for an alleged assault on a
prison officer arising out of the same incident;
5. a denial of communication with his solicitor
following the said incident;
6. the denial of the applicant’s right to full and
unrestricted correspondence between himself and his
legal advisers on all of the above matters;
7. an application (application no. 12323/86) to the
European Commission of Human Rights ("the Commission")
concerning inter alia his solitary confinement and
access to his solicitor while in custody in hospital;
and
8. the application with which the present case is
concerned.
10. On 16 September 1985, the applicant’s solicitor
wrote to the Governor of Peterhead Prison, asking that
all correspondence between him and his client should
pass without interference. After having discussed the
matter with the applicant, the Deputy Governor wrote on
23 September 1985 to the applicant’s solicitor
indicating that outgoing mail from the applicant to his
solicitor concerning his petition to the Commission, if
properly marked so as to indicate that it concerned the
Convention, would not be opened.
11. In a further letter dated 4 October 1985 to the
Governor of Peterhead Prison his solicitor claimed that
the letter of 16 September had not been answered in its
entirety as he had been given no assurance by the Deputy
Governor that letters to Mr Campbell would not be
subject to interference. On 15 October 1985 the Deputy
Governor replied that incoming mail from solicitors
concerning an application to the Commission, suitably
identified by placing (a) the name of the solicitor’s
firm and (b) the initials ECHR in a prominent position
on the envelope, would be opened in the presence of the
prisoner and handed to him unread (see paragraph 25
below). The Deputy Governor explained that this
arrangement would not apply to solicitors’
correspondence about matters other than the application
to the Commission.
12. On 24 October 1985 the applicant’s solicitor wrote
to the Scottish Home and Health Department ("SHHD"), the
Government department concerned with the administration
of prisons in Scotland, again requesting that all of his
correspondence to the applicant should be allowed to
pass to him without interference.
13. On 29 October 1985 the applicant petitioned the
Secretary of State for Scotland complaining about
censorship of his correspondence with his solicitor. In
their reply of 19 June 1986 to this and other petitions
the SHHD advised the applicant that his solicitors had
been informed by the Deputy Governor, Peterhead, on 15
October 1985 that correspondence "in respect of ECHR
procedures" should be clearly marked to ensure privacy
but that any other correspondence between an inmate and
his legal advisers was subject to scrutiny under
standing instructions to prison establishments.
14. On 16 June 1986 the SHHD wrote to the applicant’s
solicitor confirming the arrangements for solicitors’
correspondence concerning matters before the Commission
but reaffirming that other correspondence was still
subject to the normal rules which provided for the
opening and reading of all letters to and from a
prisoner (see paragraphs 19-22 below).
15. On 19 June 1986 the applicant again complained that
incoming mail from his solicitor was scrutinised. He
repeated these complaints on 27 June 1986. In these
petitions, the applicant also drew the attention of the
authorities to the fact that correspondence to and from
the European Commission of Human Rights was being opened.
The reply from the SHHD, received by the applicant on 15
July 1986, referred to the existing arrangements as
discussed in correspondence between his solicitor and
management at Peterhead Prison in September and October
1985.
In a petition dated 4 November 1986, the applicant again
complained that all legal correspondence apart from
letters relating to the Convention was being opened. The
reply to this petition and others received by him on 24
July 1987 stated, inter alia, that his correspondence
was being dealt with in accordance with Prison Standing
Orders. However, he was advised that the terms of the
existing Standing Orders were under review in this
respect.
In a further petition dated 30 December 1986 he
complained that a letter from a firm of solicitors was
opened and photocopied before he received it.
16. In a letter dated 16 June 1987 to the applicant’s
solicitor, the SHHD confirmed that the rules relating to
prisoners’ correspondence were under review in the light
of the friendly settlement reached in the case of McComb
(application no. 10621/83, report of the Commission
dated 15 May 1986 - see paragraph 23 below). The
applicant’s solicitor was advised that, pending the
outcome of discussions between the SHHD and the Law
Society of Scotland, the current rules would continue to
apply to correspondence between a prisoner and his legal
adviser; in particular, only correspondence concerning
matters before the Commission would be allowed to pass
unopened.
However, it is established that at least some of the
correspondence from the Commission had been opened. The
applicant referred to letters dated 20 June 1985, 17
July 1985, 9 October 1985, 20 November 1985, 22 April
1986, 22 May 1986, 7 January 1987, 4 June 1987, 18
August 1987, 2 October 1987, 7 October 1987 and 3
November 1987 from the Commission which allegedly show
the prison censor’s mark on the top right hand corner.
The Government accepted that five of these letters (17
July 1985, 9 October 1985, 20 November 1985, 22 April
1986 and 18 August 1987) were opened. They considered
that three other letters (20 June 1985, 22 May 1986 and
7 January 1987) may have been opened but that it was not
possible to identify the markings. Of the remaining
letters the Government stated that there were no
identifiable marks and thus no opinion could be
expressed as to whether they had been opened or not.
17. The applicant’s solicitor applied for legal aid to
bring civil proceedings in respect of the interference
with the applicant’s correspondence. Legal aid was
refused on 7 October 1986 by the Supreme Court Legal Aid
Committee on the ground that the applicant had no
probable cause of action. The Committee also noted that
the applicant was not being denied visits from his legal
advisers and that he had not indicated that he was
unable to give instructions verbally to his advisers.
The applicant’s appeal against this decision was refused
on 5 December 1986 by the Legal Aid Central Committee of
the Law Society of Scotland.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. General legal framework
18. At the relevant time the prison system in Scotland
was governed by the Prisons (Scotland) Act 1952 ("the
1952 Act"), which has since been repealed. Similar
provisions were re-enacted in the Prisons (Scotland) Act
1989.
Sections 1 and 3 of the 1952 Act vested general control
and superintendence over prisons in Scotland in the
Secretary of State for Scotland. He was empowered, by
section 35 (1), to "make [by statutory instrument] rules
for the regulation and management of prisons ... and for
the classification, treatment, employment, discipline
and control of persons required to be detained therein".
In exercise of his powers under section 35 (1), the
Secretary of State made the Prison (Scotland) Rules 1952
("the Prison Rules"), which have been amended from time
to time and which are published. He also, in supplement
of the Prison Rules and by virtue of his general
jurisdiction over prisons and of various powers
conferred by the Prison Rules themselves, issues
instructions to the Governors of prisons in the form of
Standing Orders and administrative circulars. The
Standing Orders relevant to correspondence are also
published. Every prisoner, on his admission to prison,
is given or given access to a booklet summarising the
Rules and Standing Orders.
B. Correspondence with legal advisers
19. Communications between prisoners and their legal
advisers and others are governed principally by Rule 74
of the rules. Rule 74 (4) provides that - subject to one
exception which is not relevant in the present case - "every
letter to or from a prisoner shall be read by the
Governor or by an officer deputed by him for that
purpose".
The validity of Rule 74 (4) was judicially considered
and upheld in the case of Leech v. Secretary of State
for Scotland (judgment of the Outer House of the Court
of Session of 26 October 1990) which concerned the
reading of a prisoner’s correspondence with a legal
adviser relating to potential legal proceedings. The
Court considered inter alia that Rule 74 (4) could not
be described as irrational since "it cannot be supposed
that there are no sound grounds for requiring control
over correspondence involving a prisoner even when it
takes place between him and his legal adviser".
20. In the case of remand prisoners, Rule 124 (2)
provides that they shall be allowed to write to their
legal advisers. Under Rule 124 (3) any confidential
written communications prepared by such a prisoner as
instructions for his legal adviser may be delivered to
the legal adviser without being examined by any officer
of the prison unless the Governor has reason to suppose
that it contains matters not relating to such
instructions. Under Rule 127 this facility is also
available to convicted prisoners who are the subject of
further charges. Similar provisions apply under Rule 132
(2) to an appellant in connection with his appeal.
21. These rules are supplemented by Standing Order M,
which deals in detail with communications between
prisoners and others. Copies of this Standing Order are
available to prisoners and the public. Standing Order
Ma1 (a) sets out the purpose of examination of the
correspondence, namely to prevent its use to plan
escapes or disturbances or otherwise jeopardise the
security of the establishment and to satisfy other
reasonable requirements of prison administration. Under
Standing Order Ma1 (d), when correspondence is examined
or read this is to be done as quickly as possible.
22. Most correspondence with legal advisers is governed
by Standing Order Ma6 (e) which concerns general
correspondence. Under Standing Order Ma7 such
correspondence:
"may not contain the following:
(a) Escape plans, or material which if allowed would
jeopardise the security of a prison establishment.
(b) Plans or material which would tend to assist or
encourage the commission of any disciplinary offence or
criminal offence (including attempts to defeat the ends
of justice by suggesting the concoction or suppression
of evidence).
(c) Material which could jeopardise national security.
(d) Descriptions of the making of any weapon, explosive,
poison or other destructive device.
(e) Obscure or coded messages which are not readily
intelligible or decipherable.
(f) Threats of violence or of damage to property likely
to induce fear in the recipient.
(g) Blackmail or extortion.
(h) Indecent or obscene material.
(i) Information which would create a clear threat or
present danger of violence or physical harm to any
person.
(j) Complaints about prison treatment which the inmate
has not yet raised through the prescribed procedures ...
(k) Material which is intended for publication or for
use by radio or television (or which, if sent, would be
likely to be published or broadcast) ...
(l) Material constituting the conduct of business
activity ...
(m) In the case of an inmate against whom a deportation
order is in force, material constituting or arranging
any financial transaction ...
(n) In the case of an inmate in respect of whom a
receiving order has been made or who is an undischarged
bankrupt, material constituting or arranging any
financial transaction ..."
23. Following the friendly settlement of 15 May 1986 in
the case of McComb v. the United Kingdom (application
no. 10621/83, report of the Commission, Decisions and
Reports (DR) no. 50, pp. 81-89), new procedures dealing
with correspondence between a prisoner and his legal
adviser in respect of legal proceedings which have been
instituted came into force on 21 March 1988, as set out
in Standing Order Ma8:
"Correspondence with a legal adviser about legal
proceedings to which an inmate is already a party or,
about a forthcoming adjudication, may not be read or
stopped unless the Governor has reason to suppose it
contains other material. Such a letter may be examined
for illicit enclosures, but should only be opened for
that purpose in the presence of the inmate by whom it is
sent or to whom it is addressed.
Other correspondence with a legal adviser may be read
and may not contain anything specified in Standing Order
Ma7 (a) to (i) and (k) to (n). Such correspondence may
not be stopped on the grounds that it contains material
prohibited by Standing Order Ma7 (j) unless it is clear
that the inmate is not seeking legal advice but is
writing for some other purpose."
The procedure to be followed in respect of such
correspondence was described in a Circular issued to
Prison Governors on 26 February 1988. The solicitor is
required to send such mail within a sealed envelope
bearing the words "Legal Proceedings" and his signature.
This envelope is placed within another envelope
addressed to the Prison Governor. The inner envelope is
passed unopened to the prisoner.
When a prisoner is not yet a party to legal proceedings,
but is contemplating bringing them, all mail is liable
to be opened and read. In practice, mail is not opened
at low-security "open prisons" or at the very
high-security "Special Units". In other prisons the
letters of prisoners in high-risk categories are those
most frequently opened.
C. Correspondence concerning proceedings under the
European Convention on Human Rights
24. Standing Order M also contains specific provisions
relating to correspondence with the European Commission
or Court of Human Rights or with a legal adviser in
connection with a petition to the Commission or pending
proceedings before the Commission or the Court. Under
Standing Order Ma10 such correspondence may not contain
material prohibited under Standing Order Ma7 (a) to (c)
or (e) (see paragraph 22 above).
25. Further general provisions relating to the
Convention are to be found in Standing Orders Ma1 (b)
and Mf. In particular, Standing Order Mf7 expressly
provides that correspondence between an inmate and his
legal adviser about a petition to the Commission or
proceedings resulting therefrom should not be read
unless the Governor has reason to suppose that the
correspondence contains other matters.
26. The Government state that, in practice, as regards
correspondence between prisoners and the Commission,
outgoing letters if sealed will normally go unopened.
Incoming letters from the Commission are opened; the
contents are examined to confirm that they are what they
purport to be but they are not read; they are thereafter
issued promptly to the prisoner.
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Campbell lodged his application with the
Commission on 14 January 1986 (no. 13590/88). He
complained of interference by the prison authorities
with his correspondence with his solicitor, the
Commission and a Member of Parliament contrary to
Articles 8 and 10 (art. 8, art. 10) of the Convention.
He also complained of a violation of Article 6 para. 1
(art. 6-1) of the Convention in that he had been refused
legal aid to challenge in the civil courts the actions
of the prison authorities in respect of his
correspondence.
28. On 8 November 1989 the Commission found admissible
the complaint that correspondence with his solicitor and
the Commission had been opened by the prison authorities
in violation of his right to respect for correspondence
under Article 8 (art. 8). It declared the other
complaints inadmissible but decided to examine further
whether the opening of the applicant’s correspondence
with the Commission was compatible with Article 25 para.
1 (art. 25-1) of the Convention.
In its report of 12 July 1990 (Article 31) (art. 31),
the Commission expressed the opinion:
1. by eleven votes to one, that there had been a
violation of Article 8 (art. 8) in respect of the
opening of the applicant’s correspondence with his
solicitor concerning contemplated and pending
proceedings;
2. by eight votes to four, that there had been a
violation of Article 8 (art. 8) in respect of the
opening of the applicant’s general correspondence with
his solicitor;
3. by eleven votes to one, that there had been a
violation of Article 8 (art. 8) as a result of the
opening of the applicant’s correspondence with the
Commission;
4. by ten votes to two, that the applicant had not been
hindered in the effective exercise of the right of
individual petition under Article 25 para. 1 (art.
25-1).
The full text of the Commission’s opinion and of the
dissenting opinions contained in the report is
reproduced as an annex to this judgment*.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
29. At the hearing on 23 September 1991 the Government
invited the Court to hold that:
1. there had been no violation of Article 8 (art. 8);
2. that the applicant had not been hindered in the
effective exercise of the right of individual petition
under Article 25 para. 1 (art. 25-1) in fine of the
Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
30. The applicant complained that correspondence to and
from his solicitor and the Commission was opened and
read by the prison authorities in breach of Article 8
(art. 8) which reads:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights
and freedoms of others."
31. Both the Government and the Commission have made
reference to the European Agreement relating to persons
participating in proceedings of the European Commission
and Court of Human Rights of 6 May 1969 ("the European
Agreement"). This Agreement is distinct from the
Convention and is binding on twenty Contracting Parties,
including the United Kingdom from 1971. It also applies
to the applicant and his solicitor (Article 1 para. 1
(b) and (c)).
Article 3 of the Agreement provides:
"1. The Contracting Parties shall respect the right of
the persons referred to in paragraph 1 of Article 1 of [the]
Agreement to correspond freely with the Commission and
the Court.
2. As regards persons under detention, the exercise of
this right shall in particular imply that:
(a) if their correspondence is examined by the competent
authorities, its despatch and delivery shall
nevertheless take place without undue delay and without
alteration;
(b) such persons shall not be subject to disciplinary
measures in any form on account of any communication
sent through the proper channels to the Commission or
the Court;
(c) such persons shall have the right to correspond, and
consult out of hearing of other persons, with a lawyer
qualified to appear before the courts of the country
where they are detained in regard to an application to
the Commission, or any proceedings resulting therefrom.
3. In application of the preceding paragraphs, there
shall be no interference by a public authority except
such as is in accordance with the law and is necessary
in a democratic society in the interests of national
security, for the detection or prosecution of a criminal
offence or for the protection of health."
Article 6 of the Agreement states:
"Nothing in [the] Agreement shall be construed as
limiting or derogating from any of the obligations
assumed by the Contracting Parties under the Convention."
A. Correspondence with his solicitor
1. "Interference"
32. The Government maintained that the applicant had not
substantiated his claims of an interference with the
right to respect for correspondence to and from his
solicitor since he did not specify any letter which he
said was opened and related to pending proceedings. In
their view the applicant was required to substantiate
his claims and had failed to do so. Moreover, at the
hearing they stressed that the applicant’s complaint
only related to the opening, and not to the reading, of
his correspondence.
33. The Court cannot accept these arguments. It notes in
the first place that from the outset in his application
to the Commission of 14 January 1986 the applicant
complained that "his correspondence with his solicitors
and the European Commission of Human Rights has
regularly been subjected to interference in so far as it
has been opened, perused, scrutinised and censored by
the prison authorities". He added that he was restricted
in his contacts with his solicitor and the Commission
because he knew that "this correspondence will be read
(...) and noted by the prison authorities". The Court
further observes that the Government did not dispute
that the applicant’s incoming and outgoing
correspondence with his solicitor, other than that
concerning a petition to the Commission, could be
examined under the Prison Rules. Indeed, the SHHD had
informed the applicant and his solicitor that this
correspondence was subject to the existing rules which
provided for the opening and reading of such letters (see
paragraphs 13-14 above). In these circumstances, the
applicant can claim to be a victim of an interference
with his right to respect for correspondence under
Article 8 (art. 8).
34. Such interference amounts to a violation of this
provision unless it was "in accordance with the law",
had an aim or aims that is or are legitimate under
Article 8 para. 2 (art. 8-2) and was "necessary in a
democratic society" for the aforesaid aim or aims (see,
amongst many others, the Kruslin v. France judgment of
24 April 1990, Series A no. 176-A, p. 20, para. 26).
2. "In accordance with the law"
35. In paragraph 51 of its report the Commission noted
that it was not disputed between the parties that the
measure complained of was in conformity with Scottish
law. The applicant did not comment on this statement in
writing, but he submitted for the first time at the
hearing that the interference with his correspondence
was not in accordance with the law. He questioned the
legal validity of the power to open correspondence under
the Prison Rules and Standing Orders on the grounds that
it is a criminal offence under section 56 of the Post
Office Act 1953 to "prevent or impede" the delivery of
the post and that the Secretary of State had in effect
granted himself a general search warrant which is
unlawful under the law of Scotland.
36. Both the Government and the Commission considered
that the interference with the applicant’s
correspondence was based on the Prison (Scotland) Rules
1952 (as amended) made by the Secretary of State in
pursuance of his statutory powers under section 35 of
the Prisons (Scotland) Act 1952 and supplemented by
Standing Orders which were published and available to
prisoners and the general public.
37. Although the phrase "in accordance with the law"
refers in the first place to national law, it is not, in
principle, for the Court to examine the validity of
secondary legislation. This is primarily a matter which
falls within the competence of national courts which in
the present case have examined and upheld the validity
of the prison rule providing for the opening and reading
of prisoners’ correspondence (see paragraph 19 above).
In the circumstances the Court sees no reason to call
into question the findings of the national court.
38. Accordingly, the Court, like the Commission, finds
that the interference was "in accordance with the law"
within the meaning of Article 8 para. 2 (art. 8-2).
3. Legitimate aim
39. The applicant did not accept that the purpose of the
interference with his correspondence was the "prevention
of disorder or crime", within the meaning of Article 8
para. 2 (art. 8-2). As regards incoming mail, he
suggested that the aim of the prison authorities was not
to check for prohibited material but to learn of the
contents of letters before the prisoner did.
40. The Government submitted that such correspondence
was opened for "the prevention of disorder or crime" in
pursuit of a legitimate aim in terms of Article 8 para.
2 (art. 8-2). The Commission agreed.
41. In the Court’s view there is no reason to doubt that
the control of the applicant’s correspondence was
carried out under the Prison Rules and Standing Orders
to ensure inter alia that it did not contain material
which was harmful to prison security or the safety of
others or was otherwise of a criminal nature. The
interference thus pursued the legitimate aim of "the
prevention of disorder or crime" within the meaning of
Article 8 para. 2 (art. 8-2).
4. "Necessary in a democratic society"
42. The applicant contested the necessity of opening and
examining letters to and from his solicitor. He pointed
out that many of the items of correspondence with his
solicitor concerned legal actions or complaints against
prison officials who had an interest in protecting their
positions. It was unjust that they and their colleagues
should be allowed access to what was essentially private
information and legal advice. Such access was
susceptible to abuse in view of the solidarity which
existed amongst prison staff.
He further submitted that the rights, duties and
privileges of lawyers were specifically developed to
protect the liberty and privacy of the individual as
well as the right to a fair trial and the proper
administration of justice. He pointed out that the
purpose of the principle of confidentiality between
lawyer and client is to enable a person to consult his
solicitor freely without the risk that information would
be communicated to his opponent.
43. The Government did not contest that, if
correspondence relating to pending proceedings had been
routinely opened, there would have been a breach of
Article 8 (art. 8). They limited their plea in this
context to maintaining that the applicant had not
substantiated his complaint (see paragraph 32 above).
Nor did they seek to argue that there existed any
particular suspicion in respect of the applicant’s mail
on account of his own or his solicitor’s personal
circumstances.
However, they argued that it was necessary inter alia in
the interests of prison security to open letters to and
from a solicitor concerning contemplated legal
proceedings, as well as general correspondence, with a
view to determining whether or not they contained
prohibited material. In addition, it was contended that
Contracting States enjoy a certain margin of
appreciation in striking a balance between the
protection of prison security and respect for the
confidentiality of correspondence. How the balance was
to be struck was a matter of judgment best made by those
familiar with the Scottish prison system who had
experience in dealing with both prisoners and solicitors
in Scotland. The prison authorities were entitled to
strike a different balance in relation to correspondence
between prisoners and solicitors which concerned matters
other than pending legal proceedings.
44. The Court recalls that the notion of necessity
implies that the interference corresponds to a pressing
social need and, in particular, that it is proportionate
to the legitimate aim pursued. In determining whether an
interference is "necessary in a democratic society"
regard may be had to the State’s margin of appreciation
(see, amongst other authorities, The Sunday Times v. the
United Kingdom (no. 2) judgment of 26 November 1991,
Series A no. 217, pp. 28-29, para. 50).
45. It has also been recognised that some measure of
control over prisoners’ correspondence is called for and
is not of itself incompatible with the Convention,
regard being paid to the ordinary and reasonable
requirements of imprisonment (see the Silver and Others
v. the United Kingdom judgment of 25 March 1983, Series
A no. 61, p. 38, para. 98). In assessing the permissible
extent of such control in general, the fact that the
opportunity to write and to receive letters is sometimes
the prisoner’s only link with the outside world should,
however, not be overlooked.
46. It is clearly in the general interest that any
person who wishes to consult a lawyer should be free to
do so under conditions which favour full and uninhibited
discussion. It is for this reason that the lawyer-client
relationship is, in principle, privileged. Indeed, in
its S. v. Switzerland judgment of 28 November 1991 the
Court stressed the importance of a prisoner’s right to
communicate with counsel out of earshot of the prison
authorities. It was considered, in the context of
Article 6 (art. 6), that if a lawyer were unable to
confer with his client without such surveillance and
receive confidential instructions from him his
assistance would lose much of its usefulness, whereas
the Convention is intended to guarantee rights that are
practical and effective (Series A no. 220, pp. 15-16,
para. 48; see also, in this context, the Campbell and
Fell v. the United Kingdom judgment of 28 June 1984,
Series A no. 80, p. 49, paras. 111-113).
47. In the Court’s view, similar considerations apply to
a prisoner’s correspondence with a lawyer concerning
contemplated or pending proceedings where the need for
confidentiality is equally pressing, particularly where
such correspondence relates, as in the present case, to
claims and complaints against the prison authorities.
That such correspondence be susceptible to routine
scrutiny, particularly by individuals or authorities who
may have a direct interest in the subject matter
contained therein, is not in keeping with the principles
of confidentiality and professional privilege attaching
to relations between a lawyer and his client.
48. Admittedly, as the Government pointed out, the
borderline between mail concerning contemplated
litigation and that of a general nature is especially
difficult to draw and correspondence with a lawyer may
concern matters which have little or nothing to do with
litigation. Nevertheless, the Court sees no reason to
distinguish between the different categories of
correspondence with lawyers which, whatever their
purpose, concern matters of a private and confidential
character. In principle, such letters are privileged
under Article 8 (art. 8).
This means that the prison authorities may open a letter
from a lawyer to a prisoner when they have reasonable
cause to believe that it contains an illicit enclosure
which the normal means of detection have failed to
disclose. The letter should, however, only be opened and
should not be read. Suitable guarantees preventing the
reading of the letter should be provided, e.g. opening
the letter in the presence of the prisoner. The reading
of a prisoner’s mail to and from a lawyer, on the other
hand, should only be permitted in exceptional
circumstances when the authorities have reasonable cause
to believe that the privilege is being abused in that
the contents of the letter endanger prison security or
the safety of others or are otherwise of a criminal
nature. What may be regarded as "reasonable cause" will
depend on all the circumstances but it presupposes the
existence of facts or information which would satisfy an
objective observer that the privileged channel of
communication was being abused (see, mutatis mutandis,
the Fox, Campbell and Hartley v. the United Kingdom
judgment of 30 August 1990, Series A no. 182, p. 16,
para. 32).
49. The Government have argued that the opening of the
applicant’s correspondence did not prevent him from
having an effective opportunity to communicate in
confidence with his solicitor during prison visits. By
way of analogy they pointed out that Article 3 para. 2
(c) of the European Agreement only guaranteed, in the
context of proceedings before the Strasbourg organs, the
confidentiality of legal consultations with a prisoner
during a visit. In a commentary to the Agreement, the
Committee of Experts on Human Rights considered that
correspondence between a prisoner and his lawyer, in
this context, was susceptible to examination by the
competent authorities (report to the Committee of
Ministers, 27 October 1969, para. 58, H (69)15.)
50. However, these arguments do not answer the
applicant’s complaint. In the first place, the
provisions of the European Agreement are not to be
interpreted as limiting the obligations assumed under
the Convention, as indicated by Article 6 of the
Agreement. They thus cannot be interpreted as
prejudicing the rights guaranteed in the Convention (see,
mutatis mutandis, the Ekbatani v. Sweden judgment of 26
May 1988, Series A. no. 134, p. 13, para. 26). Moreover,
the application of Article 3 para. 2 (c) is subject to
the safeguards contained in Article 3 para. 3 which
raise problems of interpretation similar to those raised
by Article 8 para. 2 (art. 8-2) of the Convention. It
therefore offers little clarification of the point at
issue and cannot be construed as permitting the opening
of such correspondence under Article 8 (art. 8).
Further, correspondence is a different medium of
communication which is afforded separate protection
under Article 8 (art. 8). The right to respect for
correspondence is of special importance in a prison
context where it may be more difficult for a legal
adviser to visit his client in person because, as in the
present case, of the distant location of the prison (see
paragraph 8 above). Finally, the objective of
confidential communication with a lawyer could not be
achieved if this means of communication were the subject
of automatic control.
51. The Government have also argued that the
professional competence and integrity of solicitors
could not always be relied on. The Government added that
they not infrequently broke their disciplinary rules and
various abuses had come to light since the coming into
force of the new rules in respect of correspondence
relating to pending proceedings. Moreover, if it were
known that all correspondence with solicitors would pass
unopened there existed a risk that they would become the
target of pressure from those wishing to smuggle
forbidden material into or out of prisons. Since drugs
or even explosives could be concealed within an ordinary
letter this was a real risk. It was thus wholly
proportionate for the authorities to minimise risks of
this kind by opening such letters.
52. The Court, however, is not persuaded by these
submissions. The possibility of examining correspondence
for reasonable cause (see paragraph 48 above) provides a
sufficient safeguard against the possibility of abuse.
It must also be borne in mind that solicitors in
Scotland are officers of the court and are subject to
disciplinary sanctions by the Law Society of Scotland
for professional misconduct. It has not been suggested
that there was any reason to suspect that the
applicant’s solicitor was not complying with the rules
of his profession. In sum, the mere possibility of abuse
is outweighed by the need to respect the confidentiality
attached to the lawyer-client relationship.
53. There being no further room for allowing for a
margin of appreciation, the Court finds that there was
no pressing social need for the opening and reading of
the applicant’s correspondence with his solicitor and
that, accordingly, this interference was not "necessary
in a democratic society" within the meaning of Article 8
para. 2 (art. 8-2).
54. Accordingly, there has been a breach of Article 8
(art. 8) in this respect.
B. Correspondence with the Commission
55. The applicant further complained under this
provision that his mail to and from the Commission had
been opened and read.
1. Interference
56. The Government maintained that letters to the
Commission are not normally opened and that the
applicant had not substantiated his claim of an
interference in this respect. On the other hand, they
stated that letters from the Commission were opened, but
not read, to ensure that they actually came from the
Commission.
57. The applicant’s outgoing mail to the Commission was
not, in practice, subject to scrutiny (see paragraphs
13, 16 and 25-26 above) and there is no indication that
any such letters have been opened. The Court therefore
finds that it has not been established that such
outgoing mail had been opened. However, the practice of
opening letters from the Commission, whether or not they
were read, amounts to an interference with the
applicant’s right to respect for correspondence which
falls to be justified, in accordance with the Court’s
case-law (see paragraph 45 above), under Article 8 para.
2 (art. 8-2).
2. "In accordance with the law"
58. The applicant contested that the opening of his
correspondence was "in accordance with the law" (see
paragraph 35 above).
59. The Court rejects his arguments for the reasons
outlined above (see paragraphs 35-37). The opening of
letters from the Commission was based, inter alia, on
the Standing Orders which were published and available (see
paragraph 18 above). The interference was thus "in
accordance with the law".
3. Legitimate aim
60. Although the applicant argued that the interference
did not pursue a legitimate aim (see paragraph 39 above)
the Court sees no reason to doubt that the letters were
opened for "the prevention of disorder or crime" within
the meaning of Article 8 para. 2 (art. 8-2) (see
paragraph 41 above).
4. "Necessary in a democratic society"
61. The Government claimed that the prison authorities
were entitled to open letters from the Commission to
confirm that they were what they purported to be. In
their view, there existed a risk that letters which
appeared to come from the Commission could be used as a
channel for illicit materials. In addition, the opening
of correspondence from the Commission was compatible
with Article 3 para. 2 (a) of the European Agreement.
Some clarification of the intention of the drafters of
the Convention was thus provided on this point.
62. For its part, the Court considers that it is of
importance to respect the confidentiality of mail from
the Commission since it may concern allegations against
the prison authorities or prison officials. Indeed, the
need for confidentiality in this context is reflected in
the rules concerning outgoing mail to the Commission (see
paragraph 25 above). The opening of letters from the
Commission undoubtedly gives rise to the possibility
that they will be read and may also conceivably, on
occasions, create the risk of reprisals by the prison
staff against the prisoner concerned.
Moreover, there is no compelling reason why such letters
from the Commission should be opened. The risk, adverted
to by the Government, of Commission stationery being
forged in order to smuggle prohibited material or
messages into prison, is so negligible that it must be
discounted.
63. Finally, for the reasons indicated above (see
paragraph 50), the provisions of the Agreement cannot be
invoked to limit the scope of Article 8 (art. 8). In
addition, Article 3 para. 2 (a) of the European
Agreement merely provides that if the correspondence of
persons under detention is opened "its despatch and
delivery shall nevertheless take place without undue
delay and without alteration". Its purpose is thus to
ensure that mail shall not be stopped or delayed or
altered.
64. Accordingly, the Court finds that the opening of
letters from the Commission was not "necessary in a
democratic society" within the meaning of Article 8 para.
2 (art. 8-2). There has thus been a breach of Article 8
(art. 8) in this respect also.
II. AS REGARDS ARTICLE 25 PARA. 1 (art. 25-1)
65. Article 25 para. 1 (art. 25-1) provides:
"The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any
person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by
one of the High Contracting Parties of the rights set
forth in [the] Convention, provided that the High
Contracting Party against which the complaint has been
lodged has declared that it recognises the competence of
the Commission to receive such petitions. Those of the
High Contracting Parties who have made such a
declaration undertake not to hinder in any way the
effective exercise of this right."
66. The question of compliance with this provision was
raised ex officio by the Commission but was not pursued
before the Court. There is no reason to examine this
matter.
III. APPLICATION OF ARTICLE 50 (art. 50)
67. Article 50 (art. 50) provides as follows:
"If the Court finds that a decision or a measure taken
by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention,
and if the internal law of the said Party allows only
partial reparation to be made for the consequences of
this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the
injured party."
A. Damage
68. The applicant claimed £3,000 by way of compensation
for the interference with his correspondence. At the
hearing his lawyer claimed that an award of compensation
might discourage the Government from interfering with
prisoners’ correspondence.
69. The Government and the Delegate of the Commission
considered that no award of damage should be made.
70. The Court considers that, in the circumstances of
the case, the finding of breaches of Article 8 (art. 8)
constitutes sufficient just satisfaction under this head
for the purposes of Article 50 (art. 50).
B. Costs and expenses
71. The applicant claimed £9,257.69 by way of costs and
expenses. This amount related to solicitor’s fees and
disbursements for work done in Scotland and in
connection with the proceedings before the Convention
institutions. No claims were made for travel and
subsistence expenses which were covered by the grant of
legal aid from the Council of Europe. The applicant has
received by way of legal aid 7,205 French francs in
respect of fees.
72. Neither the Government nor the Delegate of the
Commission disagreed with the above claim.
73. The Court holds that the applicant should be awarded
the amount claimed, namely £9,257.69 less 7,205 French
francs already paid by way of legal aid in respect of
fees. This figure is to be increased by any value-added
tax that may be chargeable.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one, that the interference
with the applicant’s correspondence with his solicitor
gave rise to a violation of Article 8 (art. 8);
2. Holds by eight votes to one, that the interference
with the applicant’s correspondence with the Commission
gave rise to a violation of Article 8 (art. 8);
3. Holds unanimously, that it is not necessary to
examine whether or not there was a breach of Article 25
para. 1 (art. 25-1);
4. Holds unanimously, that the United Kingdom is to pay
to the applicant within three months, in respect of
costs and expenses, the sums resulting from the
calculations to be made in accordance with paragraph 73
of the judgment;
5. Dismisses unanimously the remainder of the claim for
just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 25
March 1992.
John CREMONA
President
Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court,
the following separate opinions are annexed to this
judgment:
(a) separate opinion of Mr Pinheiro Farinha;
(b) partly dissenting opinion of Mr Morenilla;
(c) partly dissenting opinion of Sir John Freeland.
J.C.
M.-A.E.
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
(Translation)
I am unable to accept paragraph 48 of the judgment as it
stands, for, in my opinion, it offers no guarantee that
letters will not be read.
What is meant by "suitable guarantees"?
Will the presence of the prisoner suffice?
I could have accepted the following wording: "It is
necessary to provide suitable guarantees: in principle
the letter should be opened in the presence of the
prisoner or, when that is not possible, in the presence
of the Chairman of the Bar Council (bâtonnier du barreau)
or of a lawyer of his choice."
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
1. The applicant’s complaints in the present case relate
only to the prison authorities’ examination of his
correspondence with his solicitor and with the European
Commission of Human Rights during the period dating from
January 1985 to 21 March 1988, while serving a term of
life imprisonment for murder after his conviction on 10
October 1984. On 21 March 1988 the new Prison Standing
Order came into force following the friendly settlement
in the case of McComb v. the United Kingdom (application
no. 10621/83, report of the Commission of 15 May 1986,
DR 50, pp. 81-89).
2. I fully share the view of the majority that the
opening of inmates’ correspondence by prison authorities
constitutes an interference with their rights under
Article 8 (art. 8) of the Convention unless justified
under the requirements of legality (the law being
adequately accessible and foreseeable), necessity ("pressing
social need") and proportionality to the legitimate aim
pursued by the national authorities, as set forth in the
case-law of this Court. In this respect the Court has
consistently recognised a certain but not unlimited
margin of appreciation to the States Parties in the
imposition of the restrictions (see, inter alia, the
Silver and Others judgment of 25 March 1983, Series A
no. 61, pp. 37-38, para. 97) under the supervision of
this Court as to their compatibility with the Convention.
3. When assessing the necessity of the restrictions
imposed on the applicant’s mail by the prison
authorities "a proper balance must be found between the
interests of the prisoners and their lawyers on the one
hand and those of the prison administration (and through
them of society in general) on the other", as the member
of the Commission Mr H.G. Schermers recalls in his
dissenting opinion. For this evaluation the national
authorities, within the margin of appreciation allowed
to them, are certainly better equipped than
international judges.
4. In the present case, the Government state that this
interference pursued the aim of "the prevention of
disorder or crime". The situation in Scottish prisons is
described by the applicant himself during the period of
his imprisonment as having "been rocked by the number of
demonstrations, escape attempts, roof-top protests,
hostage taking and other violent incidents" (memorial of
the applicant, Cour (91) 69, p. 124).
5. The applicant, in the words of the trial judge, "a
ruthless man of violence" (paragraph 8 of the present
judgment), was classified following his conviction of
assault and murder for security purposes as a Category B
prisoner, which comprises "inmates who do not require
maximum security but who ought to be kept in very secure
conditions". Nevertheless, in November 1985, following
an escape attempt by other prisoners, he was
re-classified as a Category A prisoner and charged with
a number of offences later abandoned by the Crown.
Category A comprises "the group of inmates requiring the
highest degree of security who ought to be kept in very
secure conditions". He remained in this category until 9
March 1988 when he was re-classified as a Category B
prisoner (see memorial of the Government, pp. 4-5, para.
1.3, and of the applicant, ibid., p. 123, and paragraph
8 of this judgment).
6. In the instant case, the restrictions imposed on Mr
Campbell’s correspondence arose from his behaviour in
prison. Consequently, in order to examine the alleged
violations of Article 8 (art. 8), like Mr Schermers, I
also consider it necessary to depart from the
methodological reasoning of the majority and to make a
distinction between the applicant’s "incoming" and "outgoing"
mail. I think that this approach highlights the question
at issue, namely as to the necessity of opening the
applicant’s correspondence in his presence in order to
check whether it includes other material (as referred to
in Standing Order Ma7) that could endanger the order of
the prison or create the risk of crime.
7. Regarding the applicant’s incoming mail, while
sharing the views of the majority as expressed in
paragraph 48 and the first sub-paragraph of paragraph
62, I think that given the situation in Scottish prisons
and the circumstances of the prisoner, the opening of
the correspondence addressed to him bearing the return
address either of his solicitor or the Commission in
order to verify the origin and content in accordance
with Standing Order Ma7 (see paragraph 22 of this
judgment) was justified under Article 8 para. 2 (art.
8-2) of the Convention. In view of the applicant’s
classification as a Category A prisoner and the
exceptional situation to which I have already referred,
it seems clear to me that, objectively, the prison
authorities did have a reasonable suspicion which
constituted sufficient justification for the measures
taken by them and that accordingly the risk of forgery
cannot be said to have been negligible. Furthermore,
having regard to the prejudice that the applicant claims
to have sustained, I do not feel that the fact that he
was not present when his mail was opened constituted
sufficient grounds for excluding the prison authorities’
justification in acting as they did in this particular
case. I cannot, therefore, agree with the majority that
the interference with the applicant’s correspondence
with the Commission gave rise to a violation of Article
8 (art. 8).
8. As regards the applicant’s outgoing correspondence,
the risk of abuse was, obviously, less and the
justification for the interference has to be more
apparent. But the evidence before the Court in this case
does not disclose any element supporting the applicant’s
claim - denied by the United Kingdom Government - that
letters sent by him to the Commission have been opened.
9. However, with respect to the opening of mail
addressed by him to his solicitor, I share the reasoning
of the majority and their conclusion that there is a
violation of his right to respect for such
correspondence as enshrined in Article 8 (art. 8). Such
a measure does not satisfy the above-mentioned
requirements of necessity and proportionality to the
legitimate aims pursued since the prison authorities
were aware that the addressee was Mr Campbell’s
solicitor, and since the Government have failed to show
any particular reason to justify the taking of measures
which have impaired the applicant’s rights of defence
and the principle of respect for an uninhibited and
confidential channel of communication between a lawyer
and his client.
PARTLY DISSENTING OPINION OF JUDGE SIR JOHN FREELAND
1. I regret that I have found it necessary to part
company with the majority of the Court on the question
whether the interference with the applicant’s
correspondence with his solicitor gave rise to a
violation of Article 8 (art. 8).
2. In the first place, I have felt unable to agree that
there is no reason to distinguish between the different
categories of correspondence with lawyers. In my view,
the analytical approach of the Commission in treating as
two separate categories (i) correspondence with a
solicitor concerning contemplated or pending legal
proceedings and (ii) general correspondence with a
solicitor is both consistent with the earlier case-law
and correct.
3. As to the substantive law applying to these
categories, although my conclusions with regard to
category (ii) are, for the reasons which I shall give
below, at variance both with those of the Commission and
with those of the majority of the Court, I would not
dissent from the proposition that, because of the link
with the principle of effective access to court under
Article 6 (art. 6), correspondence in category (i)
should not be opened by the prison authorities unless in
any particular case they have reasonable cause to
believe that the privileged channel is being abused. I
accept that to include within this category contemplated
proceedings, as well as pending proceedings, would be to
require for the United Kingdom a further relaxation of
the regime of control going beyond that introduced in
the wake of the friendly settlement in the McComb case
and would present the authorities with some difficulties
of definition and identification; but I am not persuaded
that such difficulties would be insuperable. I also
accept that any such enlargement of the privileged
channel of communication would involve some increase in
the risk of abuse - but not, I consider, to an extent
that should be intolerable.
4. If I were satisfied that it had been established that
a particular item of correspondence between the
applicant and his solicitor indeed concerned either
contemplated or pending proceedings and had been opened
by the prison authorities without their having had
reasonable cause to suspect abuse, I would therefore
have been prepared to vote for a finding of violation of
Article 8 (art. 8) in this respect. That is, however,
not the case. The applicant has relied on generalised
assertions about interference with his correspondence
with his solicitor and has neither produced nor
identified any particular letter which could be
established to have related to contemplated or pending
legal proceedings and to have been opened by the prison
authorities without reasonable cause for suspicion of
abuse. Any privilege from disclosure attaching to such a
letter would be his and could be waived by him; and his
failure to be specific in this context contrasts with
the particularity of at least part of his complaints in
relation to correspondence with the Commission, where he
submits copies of letters from the Commission which he
says were opened (and the Government accept that some of
them were). It also places the Government at a
disadvantage in evaluating the allegations made against
them and responding to the case which needs to be met;
and it deprives the Court of the opportunity to consider
in detail the situation with regard to individual
letters, as it has done in the earlier cases concerning
the application of Article 8 (art. 8) to interference
with prisoners’ correspondence. To my mind, more should
be required before a State is found to be in violation
of its obligations under the Article (art. 8) (the view
of the majority that there is no reason to distinguish
between the different categories of correspondence with
lawyers of course enables it to be satisfied by the
assertions made).
5. General correspondence with a solicitor, as distinct
from correspondence relating to contemplated or pending
proceedings, may include communications about any among
an enormously varied and extensive range of personal or
financial subjects - for example, property management -
where the link with the principle of effective access to
court is absent and the need for confidentiality is no
more cogent, by the nature of the subject-matter, than
in the case of correspondence with any other person of
affairs who might be dealing with it. I accept, of
course, that the relationship between lawyer and client
is, for good reasons, normally to be regarded as
privileged. I do not, however, find in Article 8 (art.
8) or in the previous case-law anything which seems to
me to give that privilege so overriding a force as to
limit the discretion of prison authorities, in relation
to general correspondence between a convicted prisoner
and his solicitor, to opening a letter only in an
exceptional case where they have reasonable cause to
believe it contains prohibited matter. Indeed, it seems
quite clear from its judgment in the case of Silver and
Others (Series A no. 61, in particular p. 39, para. 101)
that the Court there considered that, making due
allowance for their margin of appreciation, the
authorities were entitled as a justifiable measure of
control over prisoners’ correspondence (and, by
inference, irrespective of the extent to which they
might have had prior cause for suspicion of abuse) to
open and read - and in the circumstances of that case
even to stop - a letter from a prisoner to his solicitor
which did not relate to contemplated or pending
proceedings.
6. I confess that I am not persuaded of the existence of
any compelling reason for going further now. The
responsibility on prison authorities to maintain
security and order in prisons, and to prevent the
instigation by prisoners of activities outside prison
such as threats or violence against witnesses or the
unlawful disposal of proceeds of crime, is a very heavy
one. In the present case, the judge at the applicant’s
trial recommended that he "be kept in prison for at
least twenty years in order to safeguard members of the
public for at least that period of time"; and the
applicant was for most of the relevant period held as a
Category A prisoner (that is, as one of "the group of
inmates requiring the highest degree of security which
will consist of those who must in no circumstances be
allowed to get out, whether because of national security
considerations or their violent behaviour is such that
members of the public or the police would be in danger
of their lives if they were to get out"). To require
that the measures of control applicable in a prison
where the inmates include prisoners such as the
applicant must treat general correspondence with a
solicitor no differently, so far as justification for
opening is concerned, from correspondence relating to
contemplated or pending proceedings seems to me to
strike the balance between the protection of prison
security, on the one hand, and the respect due to
confidentiality, on the other, too much in favour of the
latter. To do so would in my view be to underestimate
the practical risks, to which the Government have drawn
attention, of creating a privileged channel of
communication so wide in scope as virtually to invite
abuse.
7. Nor do I think it a sufficient answer to say, on the
question of possible abuse, that solicitors are officers
of the court and are subject to disciplinary sanctions
for professional misconduct. Quite apart from the fact
that disciplinary sanctions on a solicitor after the
escape of a ruthless and violent prisoner might well
come nowhere near to offsetting the harmful consequences
to the public of such an escape, it is unnecessary even
to go to the extent of postulating a failure of
professional competence or integrity on the part of a
solicitor. As Sir Basil Hall and Mrs Liddy pointed out
in their partial dissent from the opinion of the
Commission, use may be made of solicitors to convey
information without their being aware of its
significance. There is also the possibility of abuse,
without the knowledge of a solicitor, as the result of,
for example, pressure on a junior non-professional
employee in the firm’s office who has access to its
stationery.
8. I also differ from the majority as to the weight to
be attached to the fact that the applicant was entitled
to have visits in prison from his solicitor, which would
take place out of the hearing of a prison officer. The
essential element of the right of access to legal advice
- the opportunity to consult in confidence with a lawyer
- was therefore available to him in an effective and
practical manner. Certainly there would be some
inconvenience and additional expense if the lawyer had
to travel a substantial distance to the prison for a
consultation, as Mr Carroll had to do on his visits to
the applicant in Peterhead. But the degree of burden
which this imposes does not seem excessive in relation
to the effects of other restrictions on freedom of
movement which flow from the need to constrain a
prisoner who is in a high-security risk category. If the
applicant wished, visits could in any event be arranged
from a solicitor practising locally (I should perhaps
add here that I do not think it could reasonably be
argued that the right of access to legal advice extends
to an entitlement to receive advice from a particular
lawyer of the client’s own choosing and only from him or
her, whatever the physical situation of the client and
that lawyer may be).
9. In sum, although the case here differs from that of
category (i) in that there is ample ground for
proceeding on the footing that there has been
interference, under the restrictions in force, with
general correspondence between the applicant and his
solicitor, I have concluded that such interference was
justifiable as "necessary in a democratic society"
within the meaning of Article 8 para. 2 (art. 8-2), just
as it was (and here I agree with the majority) "in
accordance with the law" and legitimate in its aim. It
therefore did not give rise to a violation of the
Article.
10. As for correspondence with the Commission, I agree
that the applicant has not substantiated his complaint
of interference with his outgoing letters. In the case
of incoming mail, I have after some initial hesitation
concurred in the conclusion that the opening of letters
from the Commission to him gave rise to a violation of
Article 8 (art. 8). There must admittedly be some
additional risk arising from the existence of a further
channel of communication in which letters will not be
liable to be opened unless in any particular instance
there is reasonable cause to believe that the privilege
is being abused. The view which I have reached, however,
is that in the case of correspondence with the
Commission the extent of that additional risk would be
so slight that the routine opening of letters from it
cannot be adequately justified as "necessary in a
democratic society".
* The case is numbered 52/1990/243/314. The first number
is the case's position on the list of cases referred to
the Court in the relevant year (second number). The last
two numbers indicate the case's position on the list of
cases referred to the Court since its creation and on
the list of the corresponding originating applications
to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11),
which came into force on 1 January 1990.
* Note by the Registrar: For practical reasons this
annex will appear only with the printed version of the
judgment (volume 233) of Series A of the Publications of
the Court), but a copy of the Commission's report is
obtainable from the registry.
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE SIR JOHN FREELAND
CAMPBELL v. THE UNITED KINGDOM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE SIR JOHN FREELAND